More on Positivism

It occurs to me that the last post was really long. Sorry. Here's some more on the consequences of Positivism.

Constitution. From constituere, to fix or establish. The U.S. Constitution was written as an establishing document. It "fixed" the powers of government. If you read the main body, it presents a list of what the government, be it the Executive, Congress, or the Judiciary, may do. In those places where it prohibits the government from doing something, it is always a narrowing of an earlier grant of authority. Fundamentally, the original Constitution, without the Bill of Rights, is an empowering document. It transfers some power from individuals into the Federal government. The Federal government, under this interpretation, has no power that is not granted by the Constitution. Nowhere does the Constitution grant the Federal government the power to establish an official state church. Therefore, the Federal government has no power to do so. Doing so would be unconstitutional, even without the 1st Amendment.

But the Framers found it difficult to get the Constitution ratified without a Bill of Rights. So they wrote up a list of Amendments which, together, are simply a political tract describing the new government that the Constitution would form. Congress has no power to establish a church. It was a grave error to write the Bill of Rights in the language of law. It was an even graver mistake to incorporate it bodily into the Constitution.

Expressio unius est exclusio alterius. To express one is to exclude others. If you enumerate rights, you exclude those not enumerated, 9th and 10th Amendments notwithstanding. This wasn't such a problem in the early (pre-Progressivism) days, because the original natural rights philosophy of the Founders dominated Constitutional interpretation. The document was still fundamentally an empowering document. It just had some extra descriptions attached to it, clarifying the limits of the power granted by the main body.

In come Progressivism and Positivism. Between the 1830s and the 1860s, the dominant philosophy changes. By end of the Civil War, the Constitution is no longer an empowering document. It is now a limiting document. Government power to do a thing is assumed, unless the Constitution (or Bill of Rights) removes that power. The philosophy finally consumes the whole of the law in the 1930s, with the packing of the Court.

Today, Positivism instructs that, should Congress and the several States decide that the 1st Amendment prohibition on the establishment of religion was, for some reason, no longer conducive to Progressive social goals, they might, presumably with voter approval, repeal it. And in doing so, make the establishment of an official state church Constitutional without any further action. Even though the Constitution does not grant Congress the power to establish a church.

The difference is the source of the government's power. It no longer comes from individuals, but from the group. Positivism allows the group to remove the legal safeguards protecting individual rights. This is, of course, a monstrous abrogation of individual rights.

Because Positivism permeates the legal environment, reinforced by Progressivist law professors (I often employ the phrase, "liberal pedagogical hegemony"), there is no legal means by which to mount a principled challenge to bad law. That is, there is no way to make a legal argument that a law, ruled entirely Constitutional, is nonetheless violative of individual rights. Until the dominant philosophy changes, this will remain impossible. And the philosophy will not change easily. I wonder even if it can change.

Tom G Varik